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Government Introduces New Rape Law Redefining Consent

December 12, 1991

TORONTO (AP) _ The government on Thursday proposed changes to Canada’s rape law to define sexual consent and give women more protection from men who fail to accept that no means no.

The bill introduced in the House of Commons in Ottawa also provides strict guidelines that would curtail testimony about an alleged rape victim’s past sexual activities. Such testimony would be allowed only if it was crucial to a defendant’s case.

The measure has widespread support among all political parties. Debate is expected to begin early in the new year.

″The concern is to provide some framework and guidelines to the court because these cases are dealt with in a context in our society today which is not always sensitive to the realities of real life, and particularly of women and their perspective,″ Justice Minister Kim Campbell said.

The bill would limit the circumstances in which a man could claim he believed - even if mistakenly - that a victim had consented to sex.

Asked if that meant in the future women would have to specifically say, ″Yes, I wish to engage in sexual relations,″ Ms. Campbell said: ″No. But it does say that if they say no, it means no.″

Critics long have contended that the guiding factor in determining consent to sexual intercourse should be what a woman actually said and did rather than how a man interpreted her actions.

A defendant who wanted to raise questions about a woman’s sexual history would have to make written application to a judge, who would hear evidence at a closed hearing and decide if it should be presented to the jury.

The proposed changes to the criminal code came after a Supreme Court decision in August that struck down the ″rape shield″ provision of the law. That provision had protected victims from having to disclose sexual history during a sexual assault trial.

Women’s groups praised the bill.

″On the whole, we are very pleased,″ said Helena Orton, director of litigation for the Women’s Legal Education and Action Fund. ″It provided important clarification and takes some steps forward.″

Judy Rebick, head of the National Action Committee on the Status of Women, welcomed the legislation as a historic step toward women’s equality.

″This is the first time in history that a bill has reflected the reality of women’s lives,″ she said. ″We have a bill that says: ‘No means no.’ This is what women’s groups have been fighting for for 20 years. It’s a major breakthrough for women in this country.″

Similar issues was raised last week in the opening phase of the rape trial of William Kennedy Smith in West Palm Beach, Fla. The state law gives judges some discretion in deciding whether to introduce background on the sexual history of either the accuer or the defendant.

The defense in the Smith case wanted to introduce evidence about the woman’s history of abortions, and the prosecution wanted to introduce testimony by three women who claimed they had been sexually harassed or assaulted by Smith in the past. Judge Mary Lupo barred such testimony in both instances.

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